South African Constitutional Court recognizes legality of Muslim marriage as social-legal controversy continues

South Africa's Constitutional Court on Tuesday, June 28, upheld the ruling of the Supreme Court of Appeal that the country's Marriage Act and Divorce Act were unconstitutional for not recognizing Muslim marriage.

“Women in Muslim marriages must be fully included in the South African community so that they can all enjoy the fruits of the struggle for human dignity, equality, and democracy. No cogent reasons have been advanced to justify the unfair discrimination. Accordingly, I find that the unfair discrimination against women married under Sharia law is also unjustified,” said Justice LP Tlaletsi of the Constitutional Court.

The Constitutional Court also ruled unconstitutional sections of the divorce law that fail to provide mechanisms to protect the welfare of children born from Muslim marriages and do not provide for the redistribution of assets.

The Constitutional Court said within the rationale of the paragraphs that it does not rule on the constitutionality of Islamic law, but only considers the difficulties faced by women and children who are excluded from benefiting from these two laws. Governed by this, the Constitutional Court granted legal recognition to Muslim women married in accordance with Islamic law, as well as their children.

This ruling did not come overnight, but was rather the result of legal discussions and campaigns by NGOs and activists who believed that the Marriage Act and Divorce Act leave Muslim women vulnerable in cases of divorce or the death of a husband without a will, because her marriage is not fully recognized by law.

The Muslim Marriage Bill, intended to address this, was approved in 2010 but was not passed into law.

The judicial arenas witnessed cases that contributed to the development of legal controversy over the issue and even set precedents of cases. Perhaps the most important was the ruling issued by the Supreme Court of Appeal on December 18, 2020, which recognized Muslim marriages in South Africa. It considered that both the Marriage Law and the Divorce Law contradict articles 9, 10, 28 and 34 of the Constitution.

The Women's Legal Centre Trust and Muslim Assembly Cape have argued that non-recognition of Muslim marriages leaves women and children without legal protection, while the Association of Muslim Women of South Africa has argued that “disgruntled or modernist” Muslims can enter into marriages under the civil Marriage Act.

Many South African Muslims, who number 3 million and constitute about 2% of the total population, believe that despite the passage of 28 years of democracy in the country, married Muslim women in South Africa still lack their rights with regard to housing and land issues, as well as children's rights, because the law did not recognize Muslim marriages.